Twitter, Inc. v. Taamneh

Two weeks ago, the USSC ruled that victims of a terrorist attack in Turkey failed to state a claim for aiding and abetting against certain social media companies under Section 2333(d)(2) of the Antiterrorism Act.  The Court cited Restatement (Second) of Torts and Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI Adviser covered the case:

Associate Justice Clarence Thomas, writing for a unanimous Court, explained that our legal system seeks to impose liability for aiding and abetting on those with “[s]ome level of blameworthiness,” and cited Restatement of the Law Second, Torts § 876, Illustration 9, in noting that, if liability were expanded too far, “those who merely deliver mail or transmit emails could be liable for the tortious messages contained therein.” The Court rejected the plaintiffs’ argument that the defendants could be liable if they aided and abetted ISIS generally, and explained, citing Restatement of the Law Second, Torts § 876(b) and Comment d thereto, that “a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism.” The Court also determined that the defendants, who posited that they were liable only if they directly aided and abetted the attack, “overstate[d] the nexus that §2333(d)(2) requires between the alleged assistance and the wrongful act,” because “aiding and abetting does not require the defendant to have known ‘all particulars of the primary actor’s plan,’” according to Restatement of the Law Third, Torts: Intentional Torts to Persons § 10, Comment c (T.D. No. 3, 2018) and Restatement of the Law Second, Torts § 876, Illustration 10. The Court noted that, as was the case in Halberstam, a secondary defendant who aided and abetted a tort could be liable for torts that were a foreseeable risk of the intended tort, and the “secondary defendant’s role in an illicit enterprise can be so systemic that the secondary defendant is aiding and abetting every wrongful act committed by that enterprise.” Citing § 876, Comment a, the Court clarified that conspiracy liability “typically holds co-conspirators liable for all reasonably foreseeable acts taken to further the conspiracy,” but “aiding and abetting lacks the requisite agreement that justifies such extensive conspiracy liability.”

The Court concluded that, “[g]iven the lack of nexus between that assistance and the Reina attack, the lack of any defendant intending to assist ISIS, and the lack of any sort of affirmative and culpable misconduct that would aid ISIS, plaintiffs’ claims fall far short of plausibly alleging that defendants aided and abetted the Reina attack.”

The full opinion is here.